Post-Accident Medical Complications in Louisiana Workers Compensation
Many employees are in excellent health before a work-related accident, but then suffer unusual complications following the accident.
The Louisiana Workers Compensation Act specifically holds that an employee who has an accident may be compensated for “injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom.”
So what specific complications following in the wake of an accident are covered by Louisiana workers compensation?
Basically, some complications are covered, and some complications are not covered. Really, it is necessary in each case to determine what specific type of complications followed in the wake of an accident, to see if the complications are covered by the statute.
But generally speaking, Louisiana courts do tend to lean in favor of the employees on the issue of post-accident complications.
When the employee can show that the accident caused or contributed to the final disability, Louisiana courts usually tend to allow recovery, even if the worker’s condition was complicated by infection, negligent medical treatment, lack of medical treatment, or another accident.
POST-ACCIDENT INFECTION, DISEASE, AND OTHER MEDICAL PROBLEMS
Employees can generally recover workers compensation benefits for infections or diseases secondary to the work-related accident itself.
That means that if a work-related injury gets infected, workers compensation in Louisiana will cover it.
This is important because the infection is probably the most common post-accident risk employees face.
Similarly, Louisiana employees can generally recover workers compensation benefits when lowered body resistance following an injury allows for an infection that would otherwise not occur.
An example of this type of recovery is where an employee fell fifteen feet and landed on the pavement, and then two weeks later, he died of pneumonia. This deceased employee’s family was awarded full workers compensation benefits.
POST-ACCIDENT MEDICAL COMPLICATIONS RESULTING FROM TREATMENT
Some of the complications suffered after work-related accidents are the result of the treatment which the employee received, rather than the result of the ordinary course of disease or infection.
Fortunately, employees can generally recover workers compensation benefits for the medical complications resulting from the treatment which the employee receives.
Sometimes these complications take the form of unavoidable consequences arising from medical treatment.
An example of unavailable complications is where an employee suffered serious burns in an explosion, and eventually recovered as well as could be expected, but was left with a substantial hearing loss in both ears. It was determined that the cause of this hearing loss was the antibiotic in the employee’s ears used to treat a burn there. The Louisiana court in this example awarded full workers compensation benefits to the employee for his hearing loss as well as his other injuries since his hearing loss was an unavoidable complication from the employee’s medical treatment.
On other occasions, the complications arise because of the apparent negligence of the physician or another medical provider. Often, the medical provider will be liable. And the employer should not be liable for harm from a cause which is extraordinary and thus outside such risks inherent to the treatment.
But it is not always easy to determine; however, what risks are inherent to medical treatment, or whether the medical provider or the employer is at fault.
An injured employee should always consult with an experienced Louisiana workers compensation attorney when dealing with this type of situation.
WHAT SHOULD BE DONE IF A THIRD PARTY – NOT A DOCTOR – CAUSES HARM AFTER THE ACCIDENT?
Accidents or injuries often occur after the employee’s work accident, and can contribute to the employee’s injuries, or delay the employee’s recovery. Should the employer of the insurance company have to pay or this? Basically, it depends on whether the incident that caused the second injuries were “neutral” risks (nobody’s fault) or “negligent” risks (somebody’s fault).
If there is post-accident “neutral” conduct (which means there was no negligence, and the conduct was nobody’s fault), then Louisiana courts will usually find that the workers compensation insurance company remains responsible for the injuries of the employee.
So, what exactly is neutral conduct?
Well, an example of neutral conduct occurred in one case where the employee had suffered a back injury and was healing normally until a few weeks after surgery when her child “came up behind her and frightened her” during the child’s birthday party. The courts held strongly that the event at the birthday party extended the employee’s disability, and that the workers compensation insurance company should pay for all the treatment because the event in question involved post-accident “neutral” conduct, not negligence.
If there is post-accident “negligent” conduct (which means that the conduct was somebody’s fault), then Louisiana courts will usually find that the workers compensation insurance company does not have to cover those post-accident injuries of the employee.
An example of this is an employee who gets in a car accident while the employee is recovering from his or her separate work-related injury. In that situation, the workers compensation insurance company would not have to pay for the additional injuries of the employee, even if they were aggravated by the car accident.
So again, the workers compensation insurance company will not likely be liable for any aggravation of a work-related injury by the independent negligence of a third person, even though that negligence might have occurred in the course of medical treatment of the original injury. But then again, the automobile insurance company of the driver of the other car in the accident will likely have to pay.
POST-ACCIDENT FALLS, ACCIDENTS OR OTHER EVENTS IN LOUISIANA WORKERS COMPENSATION
Sometimes, employees are re-injured in a way that can be attributed in some way to the original accident. For example, what about the employee who breaks his leg at work and then re-breaks it during recovery?
The simple answer is that in most cases, the workers compensation insurance company will have to cover all of the injury and the re-injury.
For example, in one case, an employee suffered a work-related heart attack on the employment premises, forcing him to terminate employment. About nine months later, he suffered a second and fatal heart attack at home. The Louisiana workers compensation court held that the first attack was in the course of and arose out of his employment and that the second was a “natural, foreseeable, and expectable consequence of the work-related heart attack and the employee’s death resulting therefrom is compensable.” And because of that reasoning, the court awarded full death benefits to the dependents of the employee.
But again, as in the case with an automobile accident following the work-related accident, if there is no causal relationship between the two injuries, then the workers compensation insurance company will not have to cover any of the re-injury or the complications.
Yet this is often an area of dispute to be handled by a qualified workers compensation attorney in front of the workers compensation judge. That is, is the employee’s present condition caused by the accident, or the re-injury, and what exactly did the work-related accident cause?
Obviously, if a second incident is not causally related to the first, and the first was not in fact disabling, then no workers compensation benefits will be paid.
THE EFFECT OF EMPLOYEE’S OWN POST-ACCIDENT CONDUCT IN LOUISIANA WORKERS COMPENSATION
There is no law in Louisiana that requires an injured employee to take reasonable measures to improve his or her disability following an accident.
But Louisiana courts have ruled that the employee should not be allowed to “increase the burden upon society by reason of an unnecessarily prolonged disability due not to injuries received in the service of industry but to his laggard sense of his obligation to society.” And on that basis, in some instances, Louisiana courts have denied workers compensation benefits to the employee because of his or her post-accident conduct.
THE REFUSAL BY AN EMPLOYEE TO SUBMIT TO AN OPERATION
Easily the most litigated issue involving the employee’s post-accident conduct is his refusal to submit to an operation.
The question is: should the employee continue to receive benefits if the employee refuses to undergo a recommended surgery? The answer is: yes, if the surgery is reasonable.
Of course, that begs the question: what is reasonable?
The Louisiana Supreme Court has approved a three-part test to determine whether the employee’s refusal to submit to an operation is unreasonable.
Specifically, these following questions must be answered affirmatively in order for further payments to stop if the employee will not undergo surgery:
- Can it be reasonably assumed that the operation will relieve the situation and permit the employee to resume the type of work he was performing at the time of the accident?
- Will the operation submit the employee to a minimum of danger and be in no sense dangerous to his life or be attended by no unusual risks, and is it attended with but slight pain?
- Is there no serious disagreement among the surgeons as to the necessity for the operation or the type of operation to be performed, and the probability that the disability will be cured without recurrence?
In other words:
- Will the surgery allow the employee to return to work?
- Is the surgery safe?
- Do all the doctors agree?
Even with this three-part test, Louisiana workers compensation courts usually give the benefit of the doubt to the employee.
JUDICIAL DETERMINATION OF A REFUSAL OF AN EMPLOYEE TO SUBMIT TO A SURGERY
The refusal of an employee to submit to a surgical procedure is called a “legal” question, as opposed to a “medical” question.
That means that the refusal of an employee to submit to a surgical procedure is an issue that requires judicial determination.
That also means that the issue will need to go before the workers compensation judge.
Thus, an employee is entitled to have the issue of refusal to submit to a surgical procedure fully litigated.
That means witnesses, exhibits, a trial, and possibly an appeal, all before the employee’s compensation payments may be terminated because the employee has refused to undergo surgery.
In fact, if the workers compensation insurance company does terminate payments before such a determination, then the workers compensation insurance company may have to pay penalties and attorney’s fees to the employee.
FAILURE TO CO-OPERATE IN RECOMMENDED TREATMENT
Sometimes the employee’s post-accident conduct will be that of a failure to co-operate with the treating physician. A typical example is an employee’s failure to undergo physical therapy.
Unfortunately, Louisiana courts have held that if such an employee refuses to undergo recommended treatment, then the workers compensation insurance company can terminate that employee’s benefits.
However, the workers compensation insurance company still has the burden of establishing that the employee’s willful failure to cooperate with medical treatment is the continuing cause of disability by “clear, convincing and conclusive” evidence. So the defense does not always win these types of cases.
OTHER POST-ACCIDENT CONDUCT OF THE EMPLOYEE
Does the post-accident conduct of the employee – which does not relate to the course of treatment or submission to indicated surgery – have any effect on the employee’s workers compensation benefits?
As usual, the answer is: it depends.
Basically, it depends on whether the conduct of the employee was misconduct.
NO MISCONDUCT OF THE EMPLOYEE
If, after the employee’s work-related accident, the employee causes re-injury or aggravation or another injury, but doesn’t actually do anything wrong, then the workers compensation insurance company will likely have to continue paying benefits for all these related injuries.
For example, in one case, the employee, wearing a cast on his left leg following a work-related injury, noticed a young child in front of him who was about to fall down some steps. Despite his precarious position, he reached out to assist, lost his balance, and fell, breaking his right wrist. The question was whether the workers compensation insurance company was responsible for payment of benefits for the injury to his wrist. The court ruled that the conduct of the employee was not in violation of what would have been expected of the ordinarily prudent person under the circumstances, and thus the workers compensation insurance company was responsible for payment of benefits for the injury to his wrist.
MISCONDUCT OF THE EMPLOYEE
Predictably, when the post-accident event demonstrates “fault” on the part of the employee rather than merely susceptibility to subsequent events, there may be a denial of further benefits.
That means that if, after the employee’s work-related accident, the employee does something wrong to cause re-injury or aggravation or another injury, then the workers compensation insurance company will likely not have to continue paying benefits.
For example, in one case, the court refused to make the workers compensation insurer pay for the cost of drug abuse therapy after the employee turned to “street drugs” for pain relief when the prescribed medications did not work to his satisfaction.
Basically, Louisiana Courts have found that workers compensation insurers have a right to expect that the employee will minimize his damage by avoiding negligent conduct.
So even though fault does not matter in terms of the initial injury, it can matter in terms of an aggravation or re-injury.
THE LOUISIANA STATUTE ON POST-ACCIDENT COMPLICATIONS IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statute on post-accident complications is La. R.S. 23:1021, which reads as follows:
§1021. Terms defined
As used in this Chapter, unless the context clearly indicates otherwise, the following terms shall be given the meaning ascribed to them in this Section:
(1) “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.
(2) “Brother” and “sister” includes step-brothers and step-sisters, and brothers and sisters by adoption.
(3) “Child” or “children” covers only children born of marriage, step-children, posthumous children, adopted children, and children born outside of marriage who have been acknowledged under the provisions of the Civil Code.
(4) “Dependent” means the person or persons to whom, under the provisions of Part II of this Chapter, compensation shall be paid upon the death of the injured employee.
(5) “Assistant secretary” means the assistant secretary of the office of workers compensation administration.
(6) “Health care provider” means a hospital, a person, corporation, facility, or institution licensed by the state to provide health care or professional services as a physician, hospital, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, graduate social worker or licensed clinical social worker, psychiatrist, or licensed professional counselor, and any officer, employee, or agent thereby acting in the course and scope of his employment.
(7) “Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.
(8)(a) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.
(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.
(e) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.
(9) “Office” means the office of workers compensation administration established pursuant to R.S. 23:1291.
(10) “Owner operator” means a person who provides trucking transportation services under written contract to a common carrier, contract carrier, or exempt haulers which transportation services include the lease of equipment or a driver to the common carrier, contract carrier, or exempt hauler. An owner operator, and the drivers provided by an owner operator, are not employees of any such common carrier or exempt hauler for the purposes of this Chapter if the owner operator has entered into a written agreement with the carrier or hauler that evidences a relationship in which the owner operator identifies itself as an independent contractor. For purposes of this Chapter, owner operator does not include an individual driver who purchases his equipment from the carrier or hauler, and then directly leases the equipment back to the carrier or hauler with the purchasing driver.
(11) “Part-time employee” means an employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position.
(12) “Payor” means the entity responsible, whether by law or contract, for the payment of benefits incurred by a claimant as a result of a work related injury.
(13) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.
(iv) A part-time employee, as defined in R.S. 23:1021(9) and who is employed by two or more different employers in two or more successive employments, shall be entitled to receive benefits as follows:
(aa) If an employee is employed by two or more different employers in two or more successive employments and the employee incurs a compensable injury under the provisions of this Chapter in one of the employments, the employer in whose service the employee was injured shall pay the benefits due the employee as provided in this Chapter.
(bb) If the employee is a part-time employee in one of the successive employments, is injured in that employment, but as a result of the injury also incurs loss of income from other successive employments, that employee shall be entitled to benefits computed by determining wages under the provisions of this Subsection using his hourly rate in employment at the time of injury and using the total hours worked for all employers of the part-time employee, but not to exceed his average, actual weekly hours worked or forty hours weekly, whichever is less.
(v) For an employee in seasonal employment, his annual income divided by fifty-two.
(aa) For purposes of this Subparagraph, seasonal employment shall be any employment customarily operating only during regularly recurring periods of less than forty-four weeks annually.
(bb) If the employee was not engaged in the seasonal employment more than one year prior to the accident, his annual income shall be the average annual income of other employees of the same or most similar class working in the same or most similar employment for the same employer or, in the event that the employee was the only individual engaged in that specific employment, then his annual income shall be the average annual income of other employees of the same or most similar class working for a neighboring employer engaged in the same or similar employment.
(b) Monthly wages. If the employee is paid on a monthly basis, his monthly salary multiplied by twelve then divided by fifty-two.
(c) Annual wages. If the employee is employed at an annual salary, his annual salary divided by fifty-two.
(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.
(e) Exceptions. For municipal police officers, additional compensation paid by the state pursuant to R.S. 40:1667.3 shall not be included in the calculation and computation of total salary or average weekly wage to the extent such officer continues to receive such additional compensation during the period of his disability.
(f) Income tax. In the determination of “wages” and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage.
(g) Date of accident. In occupational disease claims the date of the accident for purposes of determining the employee’s average weekly wage shall be the date of the employee’s last employment with the employer from whom benefits are claimed or the date of his last injurious exposure to conditions in his employment, whichever date occurs later.
Amended by Acts 1968, Ex. Sess., No. 25, §1; Acts 1975, No. 583, §1, eff. Sept. 1, 1975; Acts 1983, 1st Ex. Sess., No. 1, §§1, 6; eff. July 1, 1983; Acts 1987, No. 396, §1; Acts 1987, No. 494, §1; Acts 1988, No. 938, §1, eff. Jan. 1, 1989, and July 1, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §1, eff. Jan. 1, 1990; Acts 1991, No. 468, §1; Acts 1991, No. 565, §1; Acts 1993, No. 928, §2, eff. June 25, 1993; Acts 1995, No. 1137, §1, eff. June 29, 1995; Acts 1997, No. 423, §1; Acts 1997, No. 536, §1; Acts 1997, No. 1172, §4, eff. June 30, 1997; Acts 1999, No. 751, §1; Acts 1999, No. 1309, §5, eff. Jan. 1, 2000; Acts 2001, No. 288, §2; Acts 2001, No. 486, §2, eff. June 21, 2001; Acts 2001, No. 546, §1; Acts 2001, No. 1014, §§1 and 2, eff. June 27, 2001; Acts 2004, No. 26, §10; Acts 2004, No. 188, §1, eff. June 10, 2004; Acts 2004, No. 561, §1; Acts 2013, No. 337, §1; Acts 2014, No. 158, §§3 and 7.